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Petitioner: KARACHI BAR ASSOCIATION VS Respondent: ABDUL HAFEEZ PIRZADA
P L D 1988 Karachi 309
P L D 1988 Karachi 309
Before Ajmal Mian, Haider Ali Pirzada and Ahmed Ali U. Qureshi, JJ
KARACHI BAR ASSOCIATION‑‑Applicant
versus
ABDUL HAFEEZ PIRZADA and another‑ ‑Respondents
Criminal Original Miscellaneous Applications Nos. 5, ‑5‑A and 5‑B of 1976, decided on 7th February, 1988.
(a) Constitution of Pakistan (1973)‑‑ ‑‑‑ Arts.204, 66 & 68‑‑Rules of Procedure and Conduct of Business in the National Assembly of Pakistan, R.258‑‑Construction of Arts.204, 66 & 68‑‑Speeches of the Members of the National Assembly enjoy qualified privilege subject to Constitution and are amenable to contempt of Court proceedings under Art. 204.‑‑[Contempt of Court].
A reasonable construction of Article 66, Constitution of Pakistan (1973), in conjunction with Articles 68 and 204 will be that the freedom of speech of a member of the Majlis‑e‑Shoora envisaged by para. 1 of Article 66 is subject to the Constitution and, therefore, if any of its provisions is violated by a speech and for such a violation remedial action can be taken under the Constitution, the same can be availed of. It must, therefore, follow that if a member violates the provision of the Constitution, he is amenable to Article 204 of the Constitution. However, the Court will be reluctant to exercise the power of contempt of Court in respect of a speech made by a member within the four‑walls of Majlis‑e‑Shoora chamber unless there are compelling reasons,. There cannot be two opinions that for the proper functioning of a Parliament, its members should have freedom of speech uninterfered with by an outside institution but at the same time it cannot be denied that the Judges Of the superior Courts cannot discharge their Constitutional onerous duties unless they are free from all sorts of outside pressures and, therefore, the Constitution makers thought it fit and proper to incorporate above Articles 68 and 204 for prohibiting any discussion in the Majlis‑e‑Shoora with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties and empowering the Court to take action for contempt. A written Constitution like one which we have, contemplates trichotomy of powers between the three organs of the State, namely, the executive, the legislature and the judiciary. They have to act within the bounds specified in the Constitution. Any transgression or encroachment by one organ over the sphere of the other will result into chaos and uncertainty. It is, therefore, of paramount importance that an equilibrium is to be maintained inter se between the above three organs within the limits prescribed by the Constitution. It is not possible to subscribe to the submission that since under the rules the Speaker has the power to expunge any speech or any part thereof or to expel a member, the Court cannot take action under Article 204 of the Constitution, The Court cannot be divested of its power conferred on it by the Constitution by framing of rules under Article 67 of the Constitution. Nor submission that Article 68 is directory and not mandatory in nature seems to be in consonance with the language employed therein, which is of mandatory nature as the words used are "No discussion shall take place in". Article 68 is an exception to the rule of freedom of speech provided in Article 66 and the same is to be construed strictly and unless there is a clear violation of Article 68, no action under Article 204 against a member of the Majlis‑e‑Shoora can be taken in respect of the speech made by him within the four‑walls of the chamber of the Mqjlis‑e‑Shoora.
Held, the speeches of the members of the National Assembly enjoy qualified privilege subject to Constitution and are amenable to contempt of Court proceedings under Article 204 as indicated hereinabove.
Islamic Republic of Pakistan v. Mian Mahmood Ali Kasuri and another 1976 S C M R 273; Pakistan v. Ahmad Saeed Kirmani and 3 others P L D 1958 S C (Pak.) 397; Sir Edward Snelson, K.B.E. Secretary to the Government of Pakistan, Ministry of Law v. The Judges of the High Court of West Pakistan, Lahore and another P L D 1961 SC 237; Bradlaugh v. Gossett 1884 Q B D Volume XII page 271; Wason v. Walter and others 1861 to 1873, All England Law Reports page 105; Church of Scientology of California v. Johnson‑Smith 1972(l) All England Law Reports, page 378; Ch. Zahur Ilahl, M.N.A. v. Mr. Zulfikar Ali Bhutto and 2 others P L D 1975 SC 383; Special Reference No.1 of 1964, A I R 1965 S C 745 (V 52 C 124); Syed Yousaf Mahmud and others v. Abdul Hadi Khan through Dr. M.A. Hasseeb Khan and others 1983 C L C 3319; Mulls Baz. Muhammad and another v. Mst. Bakht Bibi and 31 others 1986 C L C 22; The Privileges and Practices of Parliament by Dr. M. Safi Khan Yousufzai; Erskine May Parliamentary Practice, Eighteenth Edition; AIR 1965 (Vol. 52) 745; The State v. Zia‑ur‑Rahman and others PLD 1973 S C 49 and Yaqoob Ali v. Presiding Officer, Summary Military Court, Karachi, P L D 1985 Kar. 243 ref.
(b) Interpretation of Constitution‑‑‑
‑‑‑ High Court cannot attribute any redundancy to any provision of the Constitution or any part thereof‑ ‑Provisions of Constitution are to be construed as to give effect to each and every word thereof.
M.L. Shahani for Applicant.
Kamal Azfar, Imam Ali G. Kazt, by. A.‑G and A.A. Mohammadally Addl. A.‑G. for Respondents.
Dates of hearing: 24th and 25th January, 1988.
JUDGMENT
AJMAL MIAN, J.‑‑The following question has been referred to this Full Bench for its opinion:
"Whether under 1973 Constitution of Pakistan and the rules framed thereunder the speeches of the members of the National Assembly enjoy absolute privilege and are not amenable to Contempt of Court proceedings?" 2. The brief facts leading to the making of the above reference are that the Karachi Bar Association, (hereinafter referred to as the Association), filed the above Cr. Misc. Applications under Article 204 of the Constitution of Islamic Republic of Pakistan with the Contempt of Court Act, 1926 on 29‑11‑1976 in which it was averred that on 1‑9‑1976 a Bill further to amend the Constitution of the Islamic Republic of Pakistan, (hereinafter referred to as the Constitution), was introduced in the National Assembly as Constitution (Fifth Amendment) Bill. During the course of discussions of the said Bill in the National Assembly and the Senate speeches were delivered by various members of the National Assembly and the Senate which had been published in the newspapers from which it appears that some of the speeches amounted to violation of Article 68 of the Constitution. It was, therefore, prayed that necessary action under Article 204 of the Constitution, against the persons who were found to have contravened the above Article be taken. It appears that by an order dated 8‑9‑1977 the then Chief Justice of this Court ordered issuance of notices to M/s. Abdul Hafeez Pirzada, Malik Muhammad Akhtar and Malik Muhammad Jaffar to show cause as to why they should not be proceeded against for contempt of this Court within the meaning of Articles 68 and 204 of the Constitution and Contempt of Court Act. In response to the above notices the above alleged contemnors had put in appearance, against whom charge has been framed. When the case had come up for hearing on 5‑9‑1984 a Division Bench of this Court thought it fit that the above‑quoted question be referred to a Full Bench, in pursuance whereof the learned Chief Justice constituted this Full Bench.
3. We may observe that from the Court diary it appears that on 24‑1‑1983 the then President of the Association, Mr. Abdul Hafeez Lakho, had stated that the Association was no longer interested in the matter and that it was for this Court to take action, if any, but after the above statement the Association was represented by Mr. M.L. Shahani, Advocate, who made his submissions on the above legal question. Mr. Shahani learned counsel for the Association has submitted that the freedom of speech envisaged under Article 66 of the Constitution is subject to Article 68 and Article 204 of the Constitution and that in case of violation of Article 68 of the Constitution, the High Court would be competent to take action against the member of the National Assembly under Article 204 of the Constitution.
4. Mr. Kamal Azfar learned counsel appearing for the contemners has urged as under:‑ (i) That under the Constitution, usage and practice there is absolute privilege to the speeches made in Parliament by a member and that the proceedings for contempt of Court or for libel, either criminal or civil cannot be taken against the member.
(ii) That the Parliament is the sole and exclusive authority over its procedure and proceedings.
(iii) That under Rule 258 of the Rules of Procedure and Conduct of Business of in the National Assembly of Pakistan, (hereinafter referred to as the Rules) provides the machinery for expunction of the speech or any part which is defamatory, indecent, unparliamentary or undignified and, therefore, no proceeding for the contempt can be Initiated. (iv) That the provisions of Article 66 of the Constitution are mandatory, whereas the provisions of Article 68 are directory in nature.
(v) That any speech made in the National Assembly has special status and it cannot be made subject‑matter of contempt proceedings outside the National Assembly.
(vi) That if Article 68 is an exception to Article 66 it is to be strictly considered and only to be invoked if the conduct of a particular Judge is criticised.
Mr. Imam Ali Kazi, learned Deputy Attorney‑ General, who has appeared on behalf of learned Attorney‑General on Court notice has contended as under:
(i) That Article 66 of the Constitution is subject to the Constitution and subject to the procedure to be framed under Article 67 of the Constitution.
(ii) That Article 68 controls Article 66 and that the Constitution is to be read together.
(iii) That the framers of the Constitution have deliberately taken away absolute privilege by employing in Article 66 the expression "subject to the Constitution" which was not incorporated in ' the parallel Article of the late 1962 Constitution, namely Article
(iv) That Article 204 of the Constitution does not provide any exception as to the contempt.
Mr. A.A. Mohammadally, Additional Advocate‑General, who has appeared on behalf of the Advocate‑General of Sind in response to the Court notice, adopted the above arguments of the learned Deputy Attorney‑ General, Mr. Imam Ali Kazi had emphasised that from the judgment of the Hon'ble Supreme Court in the case of Islamic Republic of Pakistan v. Mian Mahmood Ali Kasuri and another reported in 1976 S C M R 273, it is evident that the Hon'ble Supreme Court was inclined to take the view that a member of the National Assembly does not enjoy the absolute privilege of making speech but is amenable to contempt of Court proceedings under Article 204 of the Constitution for violation of Article 68 of the Constitution.
5. Mr. M.L. Shahani learned counsel for the Association in furtherance of his above submission has referred to the language of Articles 66, 68 and 204 of the Constitution and has reiterated that there cannot be any other view than that that Article 66 of the Constitution is subject to the other provisions of
the Constitution, namely, Articles 68 and 204.
Whereas Mr. Kamal Azfar in furtherance of his above submissions has submitted that in order to understand the import of Article 66 of the Constitution, it is necessary to refer the history of the U . K. Parliament as to the freedom of speech in the Parliament. To re‑enforce the above submission he has referred to the case of Pakistan v. Ahmad Saeed Kirmani and 3 others, reported in P L D 1958 S C (Pak) 397, in which A.R. Cornelius, J., inter alia, observed that:
I, therefore, need make no apology for referring to this work in this judgment, as an authority upon points of procedure, in the conduct of a Parliament or Legislative Assembly, which are not dealt with in detail in the rules of procedure of that Parliament or Assembly. This may also be a proper place at which to state the opinion that the whole course of development of representative institutions in Pakistan, during the long period when it was a part of the sub‑continent, and since the commencement of its separate existence, is a continuation in its broadest aspects of the course of development of such institutions through more than six centuries in the United Kingdom. Notwithstanding the constitutional differences between the two countries, it may be stated without fear of contradiction, that so far as concerns the place of the legislature, vis‑a‑vis the other great limbs of the State, the position in Pakistan approximates closely to that which obtains in the United Kingdom. That is a natural consequence of the fact that the representative institutions now operating were introduced for the first time by the British Government during the later years of their long period of dominance over the sub‑continent. Similar institutions have been introduced in every country outside the British Isles over which from time to time the British Sovereign has, held sway. It is in that sense that I understand the statement made in the speech of Choudhri Fazal Elahi quoted above that 'the greatest gift made by the British nation to the humanity is Parliamentary Government. It follows as a natural consequence that the incidents of Parliamentary Government as introduced by the British rulers into other territories approximate closely to those of Parliamentary Government in their own country and within their own experience. That experience includes a long period, covering nearly five centuries, of agitated controversies between the House of Commons and the Courts of the King regarding the limits of their respective jurisdictions in respect of proceedings of the House of Commons. At a later stage in this judgment I shall have to deal at some length wit ' h the various stages through which that controversy and the final conclusion which was reached, by way of an agreed equilibrium between the contending powers. For the present, I think I have said enough to indicate that on questions relating to the British Parliament and to the proceedings of that Parliament, and other Parliaments formed upon the same pattern, May's Parliamentary Practice is both valuable as well as entirely trustworthy, as a guide on all points whether of principle or of detail."
Before taking up the other cited cases, it may be pertinent to observe that in the above case Mr. Ahmad Saeed Kirmani a member of the opposition in the erstwhile West Pakistan Assembly filed a writ of quo warranto, mandamus or any other appropriate writ, order or direction for declaration that election of the Speaker of 20‑5‑1956 to be null and void. The above petition was heard by a Full Bench of erstwhile High Court of West Pakistan, which was dismissed but the Government of Pakistan filed an appeal as it was aggrieved by the certain observations of the learned Judges made by them in their separate judgments as to the jurisdiction of the High Court to interfere with the proceedings of the Assembly. Cornelius J. in addition to the observations quoted hereinabove had referred to the history of the U.K. Parliament as to its sovereignty and made following observations‑
"The conclusions reached by May as a result of examination of the whole course of authority is expressed on page 173 follows: ‑
"So far the position reached seems capable of being briefly stated as follows. The jurisdiction of a House of Parliament over its own internal proceedings is exclusive; but the Courts claim jurisdiction over matters of privilege which affect the rights of persons exercisable outside Parliament."
Over the rest of the field of privilege claimed by the House of Commons, there is yet no unanimity, so that it is possible for writers on constitutional law to say that "there may be at any given moment two doctrines of privilege the one held by the Courts, the other by either House, the one to be found in the Law Reports, the other in Hansard and there is no way of resolving the real point at issue should the ‑conflict arise". In a summary of the conclusion to be reached on the basis of the decisions in the cases cited, May points out at page 174 that while Parliament which consists of the Sovereign and the two Houses in supreme, this is a legislative supremacy and is without effect upon the privilege jurisdiction of either House acting singly; that since it has been agreed since 1704 that neither House can itself add to its privileges, Parliamentary privilege is objective and its extent is ascertainable, and consequently, belongs to the law of Parliament which is a part of the law of the land. The Judges are, therefore, bound to take judicial notice of Parliamentary privilege. The Courts have also recognised certain exclusive jurisdictions of the Houses in the field of privilege, of which only one is relevant namely that "the control of each House over its internal proceedings is absolute and cannot be interfered with by the Courts, "
This is the background which must be borne in mind in construing the provision in Article 89 of the Constitution that: ‑
"the validity of any proceedings in a Provincial Assembly shall not be questioned in any Court."
The Article specifies a number of other privileges, which it is not necessary to mention here in detail. it will be sufficient to say that so far as they go, they are precisely in line with the development of the same privileges in relation to the British Parliament. Thus, subsection (4) Of Article 8S protect the publication of Parliamentary Papers by or under the authority of a Provincial Assembly, which was the position reached in England as a result of the actions against Hansard as far back as 1840. I consider that in a similar way, the protection granted to proceedings in a Provincial Assembly against interference by the Courts is to be understood and given its full content by reference to the historical development of that right, through some six centuries of contention, in relation to the House of Commons. I feel no hesitation in thinking that this provision was introduced into the Constitution with a full knowledge of the extent to which the House of Commons had succeeded in establishing its privilege against the jurisdiction of the Courts, in relation to its own internal proceedings."
The Supreme Court was of the view that the High Court had no jurisdiction in relation to the proceedings of the Assembly and the observations made by the learned Judges of the High Court contrary to it were not in accordance with law.
6. Mr. Kamal Azfar has also referred to the famous Supreme Court's case on the question of contempt of Court, namely, Sir Edward Snelson, K.B.E. Secretary to the Government of Pakistan, Ministry of Law v. The Judges of the High Court of West Pakistan, Lahore and another, reported in P L D 1961 Supreme Court 237, (in which Sir Edward Snelson, the then Law Secretary was convicted by the erstwhile High Court of West Pakistan for contempt of Court for making contemptuous speech against which the Government had filed an appeal before the Supreme Court) and has contended that from the tenor of the judgments of the learned Judges of the Supreme Court, it is evident that the Supreme Court was of the view that if the speech which was the subject‑matter of the contempt in the said case, would have been made by a member of the National Assembly in the Assembly, the same would not have amounted to contempt of Court. Reliance was particularly placed on the observations of S.A. Rahman and Hamoodur Rahman, JJ.
He has also referred to the following cases:
(i) Bradlaugh v. Gossett, 1884 Q B D Volume XII, page 271, in which it was held by the Court of Appeal that the House of Commons is not subject to the control of Her Majesty's Courts in its administration of that part of the statute‑law which has relation to its internal procedure only and that what is said or done within its walls cannot be inquired into in a Court of law.
(ii) Wason v. Walter and others 1861 to 1873, All England Law Reports page 105. In the above case the Court of Appeal held that the publication of a fair and faithful report of a debate in either House of Parliament is privileged and an action for libel cannot be maintained against the publisher. although the speeches contain matter defamatory of an individual. (iii) Church of Scientology of California v. Johnson‑Smith, 19720), All England Law Reports, page 378, in which Browne J. held that what was said or done in Parliament in the course of proceedings they could not be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arose out of something done outside Parliament, consequently the evidence sought to be given must be excluded.
(iv) Islamic Republic of Pakistan v‑ Mian Mahmood Ali Kasuri and another, 1976 S C M R 273. In the above case the facts were that two members of the National Assembly, while addressing the Assembly made derogatory remarks in relation to the Supreme Court. The Attorney‑General moved a petition in the supreme Court under Article 204 of the Constitution for, taking action for contempt against the two members. After considering the contents of the above petition the Supreme court issued the notices to the respondents to show cause as to why action should not be taken against them under Article 204 of the Constitution. Both the members of the National Assembly in their written replies maintained that there was immunity from all proceedings in any Court in respect of anything said in the Assembly but at the same time tendered unconditional apology, which was accepted and the question whether contempt of Court proceedings could have been initiated under Article 204 of the Constitution was left open.
(v) Ch. ‑ Zahur Ilahi, M.N.A. v. Mr. Zulfikar Ali Bhutto and 2 others P L D 1975 S C 383, in which two petitions under Article 204 of the Constitution for initiating proceedings for contempt of Court against the Prime Minister of Pakistan, the Minister for Interior, States and Frontier Regions, Government of Pakistan, the Pakistan Broadcasting Corporation and the Pakistan Television Corporation for a speech made by the Prime Minister at Lyallpur on 21‑3‑1075 and another speech made by the Interior Minister on 30‑3‑1975 concerning the Reference made by the Government to the Supreme Court on 24‑2‑1975 under section 6(2) of the Political Parties Act, 1962 for banning the National Awami Party, were filed. In defence the alleged contemners pressed into service Article 248 of the Constitution which provides that the President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any Court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions subject to the proviso that there shall, be no restriction to the right of any person to bring up appropriate proceedings against the Federation or a Province. It was also provided that no criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any Court during his term of office. nor any process for the arrest or imprisonment of the President or a Governor shall issue from any Court during his term of office. The above petitions were declined by the Supreme Court but while doing so the following observations were made by Hamoodur Rehman, C.J,
"We are also in agreement with the learned counsel for the petitioners that the immunity provisions 'must, in accordance with the accepted principles of interpretation, be construed strictly and unless persons claiming the immunity come strictly within the terms of the provisions granting the immunity, the immunity cannot be extended, The immunity is in the nature of an exception to the general rule that no one is above the law. It is, nevertheless, not possible to lay down any hard and fast rule as to what is or what is not within the powers and functions of a Minister or a Prime Minister but each case will have to be judged on its own facts and circumstances."
(vi) Special Reference No.1 of 1964, A I R 1965 Supreme Court 745 (V 52 C 124). It may be observed that the above case has been relied upon even by the learned Deputy Attorney‑General and the Additional Advocate‑General and, therefore. it will be pertinent to give the facts of the same. In the above case UP Provincial Assembly convicted certain persons for contempt of the Assembly and ordered his imprisonment. He filed a writ petition at the Lucknow Bench of the Allahabao High Court, which was heard by a Division Bench which ordered…
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